Best Actress Frances McDormand Calls for Controversial “Inclusion Riders” at the Oscars

At last night’s Oscars, Best-Actress Winner Frances McDormand openly called for “inclusion riders” (a.k.a. “equity riders”) during her acceptance speech, which has quickly created an internet firestorm: “Look around, ladies and gentlemen, because we all have stories to tell and projects we need financed,” McDormand said, adding, “I have two words to leave with you tonight, ladies and gentlemen: inclusion rider.”

Many viewers had never heard of inclusion riders before. Essentially, though, they’re an private form of diversity quotas. Famous actors and actresses with hefty negotiating clout have been notorious in the past for including a bizarre list of “riders” in their contracts, from Marilyn Manson demanding gummi bears and a “bald, toothless hooker” to Mariah Carey’s demand for an assistant to dispose of her gum. Inclusion riders, conversely, are more politically-motivated.

Stacy Smith, the head of the Annenberg Inclusion Initiate at the University of Southern California who is credited with inventing the notion of inclusion riders, provided a general description to the New York Times:

…a typical inclusion rider would set benchmarks for diversity in staffing. As an example, it could require the cast be 50 percent female, 40 percent underrepresented ethnic groups, 20 percent people with disabilities, and 5 percent L.G.B.T. people…. It would also require that there be “a good-faith effort to ensure representation in key areas behind the camera”…. A failure to meet the terms of the rider could lead to a fee or a penalty for the studio or distributor that doesn’t meet the contract terms.”

McDormand’s pitch for inclusion riders is already exposing a bit of a rift between libertarians and conservatives, with the former offering tepid support, and the latter expressing harsh criticism.

On the libertarian side, over at Reason, Nick Gillespie endorses the view that inclusion riders are “compatible with libertarian ideas about using ‘market power; and voluntary association to change society.” He also correctly notes that, “[d]espite a progressive veneer, the production companies and distribution networks comprising ‘Hollywood’ have been unmasked as extremely regressive in actual practice,” and that there is at least some hope that inclusion riders could break up entrenched business practices that are neither fair nor efficient.

On the conservative side, over at the Weekly Standard, Christine Rosen describes inclusion riders as being more problematic. First, by meddling with established hiring practices, Rosen argues that “[i]nclusion riders would pit the unions against the interests of their membership.” Moreover, Rosen argues that the quotas could be endlessly expanded to the point of rendering them unworkable as more and more groups demand inclusion, ultimately rendering the effort an exercise in “empty Hollywood posturing.”

Also on the conservative side, at the National Review, Roger Clegg opines that inclusion riders may not even be legal:

The devil is in the details, but just to give you the idea: Suppose that a top salesman for a company said that he’ll continue to work there only if no African Americans are hired. The employer agreeing to such condition would clearly be in violation of Title VII of the 1964 Civil Rights Act, which bans employment discrimination by private employers.

And suppose that an actress says that she’ll do a picture only if the company making it agrees to hire according to racial, ethnic, and gender quotas. Well, if such quotas are illegal — and they are — then such an inclusion rider would be illegal, too.

I’m not an expert in this area of law, but I wouldn’t be too certain that even hard diversity quotas in private contracts would be deemed illegal — not if they were putatively imposed based on a history of discrimination (which can be substantiated) and the alleged need to greater diversity. The problem, of course, is that this only goes one direction. If a conservative actor demanded hiring quotas for conservative Republicans because of underrepresentation and perceived discrimination against them in Hollywood, it probably wouldn’t fly.

The more overarching problem, however, is that the use of quotas expressly introduces considerations that are not merit-based and ultimately foment resentment. Nobody is comfortable seeing a lesser-qualified person get a job based on superficial characteristics such as race, gender, etc. Of course, it can also be galling to see an ill-qualified person get a job based on connections, bias, or simple inertia, but formalizing a different type of discrimination is hardly the best solution to unfair hiring practices.

Affirmative action programs have been trending away from the use of hard quotas for decades now, as and they are disallowed in companies contracting with the federal government. McDormand’s calls to return to quotas, which are problematic for a number of reasons, seems retrograde. Only time will tell if it will have any impact.